Presented by: The Human Rights Institute at Columbia Law School, the ACLU, the Roger Hertog Program on Law & National Security at Columbia Law School, and the International Network of Civil Liberties Organizations

Speakers: Robert Litt, General Counsel to the Office of the Director of National Intelligence; Jameel Jaffer, Deputy Legal Director & Director of Center for Democracy, American Civil Liberties Union

My first post for Just Security explained why, despite some bungled politics, President Obama’s proposed military action in Syria could have been lawful under U.S. domestic law. This post discusses why President Obama did not violate international law by threatening to use force in Syria in the face of a persistent Russian veto, and how the Syria crisis might best evolve from here.

Obviously, we cannot fully evaluate the lawfulness of any state’s use of force until we know the precise factual circumstances under which it chooses to take action. But let’s start by distinguishing the legal question—is the option of military force available under domestic or international law?—from the policy question: would it be wise to use military force in Syria for the limited purpose of discouraging a repeat use of chemical weapons? No one denies that the policy question presents a vexing judgment call, even if the intended use were very limited and even if a decision-maker like President Obama had far more information than that available to the general public. As Nick Kristof rightly cautioned, “[l]et’s be humble enough to acknowledge we can’t be sure of the answer and that Syria will be bloody whatever we do.” The shifting balance of power in the Syrian civil war; the proliferation of questionable armed groups on both sides, the risk of mission creep, and the uncertainty of follow-on consequences from any military strike all demand caution, particularly if one starts from the premise, “first, do no harm.”

3. Was the Proposed Military Action Lawful Under International Law? That said, a prior and distinct legal question remains: would the policy option to use military force ever be available under either domestic or international law? My last post explained the circumstances under which U.S. domestic law allows policymakers that policy option. But does international law nonetheless bar it? I believe that international law has evolved sufficiently to permit morally legitimate action to prevent atrocities by responding to the deliberate use of chemical weapons.

Among international legal commentators, the emerging party line seems to be that President Obama was threatening blatantly illegal military action in Syria, for the simple reason that the Russians were not on board. The conventional argument, set forth by among others, my Yale friends and colleagues Oona Hathaway and Scott Shapiro, is “per se illegality:” in their view, Article 2(4) of the U.N. Charter permits individual and collective self-defense but bars any and all other forms of intervention without express Security Council authorization. They see the Syrian crisis as a moment to reaffirm that acting without an UN Security Council Resolution is per se illegal. But is that really what international law requires?

I agree with former British Legal Adviser Sir Daniel Bethlehem that “[i]n the case of the law on humanitarian intervention, an analysis that simply relies on the prohibition of the threat or use of force in Article 2(4) of the U.N. Charter, and its related principles of non-intervention and sovereignty, is … overly simplistic.” In essence, such an absolutist position amounts to saying that international law has not progressed since Kosovo. It takes a crucial fact that marks the Syrian situation–Russia’s persistent, cynical veto — as an absolute bar to lawful action, not as a sign of a systemic dysfunction that bars the U.N. from achieving its stated goals in Syria: protection of human rights, preservation of peace and security, and a proscription against the deliberate use of banned weapons. A “per se illegal” rule would overlook many other pressing facts of great concern to international law that distinguish Syria from past cases: including the catastrophic humanitarian situation, the likelihood of future atrocities, the grievous nature of already-committed atrocities that amount to crimes against humanity and grave breaches of the Geneva Conventions, the documented deliberate and indiscriminate use of chemical weapons against civilians in a way that threatens a century-old ban, and the growing likelihood of regional insecurity.

On reflection, a “per se illegal” rule is plainly overbroad. If no self-defense considerations arose, such a rule would permanently disable any external collective action, for example, to protect the population of any U.N. permanent member state from genocide. By treating the veto alone as dispositive, the per se position denies any nation, no matter how well-meaning, any lawful way to use even limited and multilateral force to prevent Assad from intentionally gassing a million Syrian children tomorrow. In the name of fidelity to the U.N. and this rigid conception of international law, leaders would either have to accept civilian slaughter or break the law, because international law offers no lawful alternative to prevent the slaughter. The question not asked is whether preventing that slaughter would further the purposes of international law and the U.N. system far more than a rigid reading of Article 2(4) that privileges one systemic value—territorial sovereignty—over all others.

In his recent speech to the U.N. General Assembly, President Obama pointedly challenged this absolutist view, in lay language:

Different nations will not agree on the need for action in every instance, and the principle of sovereignty is at the center of our international order. But sovereignty cannot be a shield for tyrants to commit wanton murder, or an excuse for the international community to turn a blind eye to slaughter. While we need to be modest in our belief that we can remedy every evil, and we need to be mindful that the world is full of unintended consequences, should we really accept the notion that the world is powerless in the face of a Rwanda or Srebrenica? If that’s the world that people want to live in, then they should say so, and reckon with the cold logic of mass graves. … I believe we can embrace a different future.

What, as a matter of international law, would that future look like? Like Bethlehem, I believe that under certain highly constrained circumstances (enumerated below), a nation could lawfully use or threaten force for genuinely humanitarian purposes, even absent authorization by a U.N. Security Council resolution. This was the path the United States and its NATO allies followed in Kosovo in 1999, and that President Obama proposed in Syria last month, before the U.S.-Russian diplomatic initiative took center stage.

Under this view, had President Obama proceeded in Syria as he had threatened, the U.S. would not have been in flagrant breach of international law, but rather, in a legal gray zone. The U.S. and its allies could treat Syria as a lawmaking moment to crystallize a limited concept of humanitarian intervention, capable of breaking a veto stranglehold in extreme circumstances, such as to prevent the deliberate use of forbidden weapons to kill civilians.

Chapter I of the U.N. Charter states “Purposes and Principles” that guide the United Nations, including: “To maintain international peace and security, …promoting and encouraging respect for human rights” and quoting the Charter’s preamble, “to save succeeding generations from the scourge of war,” including, presumably, by stopping renewed use of chemical weapons. Read in context, the Charter’s bar on national uses of force should be understood not as the end in itself, but a means for promoting the U.N.’s broader purposes. Article 2(4) states that “[a]ll Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” The use of the word “other” leaves open whether Article 2(4) would permit a threat or use of force against the territorial integrity of a state, in a case where that threat or action was critical or essential to effectuate the U.N.’s purposes. As Article 51 makes clear, Article 2(4)’s ban is not categorical: the Charter expressly accepts one customary international law exception permitting use of force against another state for purposes of individual and collective self-defense. So does the Charter accept another exception that permits the threat or use of force against another state when a persistent Security Council deadlock obstructs the U.N.’s capacity to achieve its stated humanitarian, anti-war purposes?

The customary international law concept of humanitarian intervention dates back to Grotius and the 17th century. Since the birth of the UN Charter, examples of state practice often invoked to illustrate humanitarian intervention in action include India’s incursion into East Pakistan to help create Bangladesh in 1971 and Tanzania’s intervention into Uganda to help oust Idi Amin in 1978-79.

A recent watershed regarding the collective use of humanitarian force came when NATO took military action in Kosovo in 1999, also without express Security Council authorization. As Sir Adam Roberts noted, Kosovo perplexed “[l]awyers [who] tend to like a world of clarity, where an action can be distinctly categorised as legal or illegal … [But i]n reality, because contradictory principles were inescapably at the heart of this crisis, there was no definitive legal answer that could satisfy a convincing majority of the world’s peoples, governments or even international lawyers.”

As U.S. Assistant Secretary of State for Democracy, Human Rights and Labor during Kosovo, I watched the nineteen NATO members accept the legality of some form of humanitarian intervention without U.N. Security Council approval. In October 1998, the United Kingdom publicly declared the legality of the operation, “so long as the proposed use of process is necessary and proportionate to the [humanitarian] aim and is strictly limited in time and scope to this aim.” Seventeen other NATO members individually satisfied themselves of the legality of their participation in the operation. Without formally embracing NATO’s position, Lou Henkin later enumerated four factors that supported the legality of collective action in Kosovo without Security Council authorization: extreme gravity of the human rights situation, collective humanitarian action, prior Security Council unavailability, and subsequent Council monitoring. This past August, the British Attorney General recast that legal analysis to argue again that humanitarian intervention without Security Council resolution could be lawful under international law, although almost immediately, as a policy matter, the U.K. Parliament voted not to proceed.

In Kosovo, the United States Government did not expressly articulate a customary international law exception condoning its NATO actions, instead relying upon a listing of factors that together justified the intervention. Then-Secretary-General Kofi Annan captured the U.N.’s ambiguity about a narrowly tailored form of humanitarian intervention in situations of great extremis by issuing a statement that recognized occasions when force might be necessary, while also referring to the importance of Security Council authorization. This catalyzed the international legal movement to explore whether there is an international Responsibility to Protect (“R2P”).

The R2P movement shifted the legal debate from the statist claim that individual nations have an amorphous, discretionary “right of humanitarian intervention” to the collective notion that the international community has a duty or “responsibility to protect” a nation’s citizens when the national government has undeniably forfeited that responsibility. Under R2P reasoning, a national government’s failure to protect its own citizens from gross abuses creates a vacuum of protection that other entities may lawfully fill. But which entities?

In 2004, a High-Level U.N. Panel on Threats, Challenges and Change “endorse[d] the emerging norm that there is a collective international responsibility to protect, exercisable by the Security Council authorizing military intervention as a last resort.”At the 2005 World Summit, member states declared that “we are prepared to take collective action . . . through the Security Council . . . on a case-by-case basis . . . should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.” In 2006, the Security Council reaffirmed that conclusion in its Resolution 1674 on the protection of civilians in armed conflict. And in 2011 the Security Council “[r]eiterat[ed] the responsibility of the Libyan authorities to protect the Libyan population” by voting, with Russia abstaining, for all necessary measures to ensure the protection of Libyan civilians.

Left unanswered in this legal evolution was what should happen if –as in Syria–both the national government and the Security Council fail to fulfill their responsibility to protect? While the U.N. Charter obviously gives the Security Council first responsibility to act, when a state uses chemical weapons to kill its own civilians, does Article 2(4) make that an exclusive responsibility? Or if the Council repeatedly fails to fill the vacuum of protection by discharging that responsibility, could a group of states with genuinely humanitarian motives act collectively and lawfully for the sole purpose of protecting civilians? Anticipating this question, the International Commission on Intervention and State Sovereignty argued twelve years ago that, “if the Security Council fails to discharge its responsibilities in conscience-shocking situations crying out for action, then it is unrealistic to expect that concerned states will rule out other means and forms of action to meet the gravity and urgency of these situations.”

So what does this mean for Syria? In important respects, Syria presents an even stronger case for intervention than Kosovo. A recent U.N. Report concluded unequivocally that chemical weapons were used on a relatively large scale near Damascus on August 21, causing numerous civilian casualties, and U.S. and allied intelligence concluded that only the Assad regime could have carried out such a large-scale chemical weapons attack. In response, a group of nations could seek to fill the vacuum of protection to prevent future releases without invoking either a “legal right of humanitarian intervention” or even a legal claim of R2P, in the sense of an international legal duty to intervene. What these states would claim instead is an ex post exemption from legal wrongfulness. As Bethlehem notes, the International Law Commission’s Articles on State Responsibility similarly recognized that extreme circumstances such as distress and necessity would preclude claims of international wrongfulness against an acting state, and permit certain forms of countermeasures to stop illegal acts by others. Whether the action would ultimately be judged internationally lawful would then depend critically on what happened next: particularly if the Security Council condoned the action after the fact. By comparison, in Kosovo, NATO took action and the Russians offered a UN Security Council resolution of disapproval. Twelve of fifteen Council members voted to reject it, including many non-NATO members, effectively agreeing that the NATO intervention could continue. In Resolution 1244, the Security Council later approved the Kosovo settlement, effectively ratifying the NATO action under international law. By analogy, in tort law, onlookers generally have no legal responsibility to act as Good Samaritans, but when they act prudently, the law generally excuses them from wrongfulness.

In sum:

[1] If a humanitarian crisis creates consequences significantly disruptive of international order– including proliferation of chemical weapons, massive refugee outflows, and events destabilizing to regional peace and security of the region– that would likely soon create an imminent threat to the acting nations (which would give rise to an urgent need to act in individual and collective self-defense under Article 51);

[2] a Security Council resolution were not available because of persistent veto; and the group of nations that had persistently sought Security Council action had exhausted all other remedies reasonably available under the circumstances, they would not violate U.N. Charter Article 2(4) if they used

[3] limited force for genuinely humanitarian purposes that was necessary and proportionate to address the imminent threat, would demonstrably improve the humanitarian situation, and would terminate as soon as the threat is abated.

In particular, these nations’ claim that their actions were not wrongful would be strengthened if they could further demonstrate:

[5] that would prevent the use of a per se illegal means by the territorial state, e.g., the use of banned chemical weapons; or

[6] that would help to avoid a per se illegal end: e.g., war crimes, crimes against humanity, or an avertable humanitarian disaster, such as the widespread slaughter of innocent civilians, e.g., another Halabja or Srebrenica.

As my last post noted, White House Counsel Kathy Ruemmler recently hinted that such a rationale underlay the President’s Syria threat. As she told the New York Times, while an attack on Syria “may not fit under a traditionally recognized legal basis under international law,” the Administration believed that given the novel factors and circumstances, such an action would nevertheless be “justified and legitimate under international law” and so not prohibited. Given the importance of the issue, it is critically important that the Obama Administration soon issue its detailed legal opinion elaborating her view. Why not explain–not just in lay terms as President Obama recently did, but in legal language that international lawyers can debate (as the U.K.’s Attorney General did in Syria and in Kosovo)– why a limited use of force in extraordinary circumstances can fit within a legitimate process of reconstructing international law?

Some claim that we cannot craft such a legal exception because it is inherently too malleable, or because human dignity can be adequately protected by action that is “illegal but legitimate.” This strikes me as a failure of lawyerly responsibility, which we would not accept in other legal situations. After all, do courts tell ambulance-drivers who ran red lights to prevent deaths that their actions are illegal because they might encourage ambulance-chasers to do the same thing? Do we tell same-sex or different-race couples that if they marry, they should consider those statuses permanently “illegal but legitimate?” Do we tell battered spouses that if they protect themselves in self-defense that their self-protective actions are “illegal but legitimate?” Or do we use the lessons of history to help define the contours of an emerging lawful exception to an overly rigid prohibition: a narrow “affirmative defense” that would render lawful otherwise illegal behavior?

4. The Way Forward: At this writing, after months of deadlock, the diplomacy that Obama’s threat triggered has taken a frantic but hopeful turn. The U.N. Security Council, including Russia, finally agreed upon a Syria resolution that includes the critical phrase:

“Decides, in the event of non-compliance with this resolution, including unauthorized transfer of chemical weapons, or any use of chemical weapons by anyone in the Syrian Arab Republic, to impose measures under Chapter VII of the United Nations Charter.”

Inspections by the Organisation for the Prohibition of Chemical Weapons (OPCW) are to begin by October 1, and the OPCW will be authorized to investigate sites not declared by the Syrian regime. For now, the Russians are cooperating, stating that they will help implement the chemical weapons deal in Syria, and will not import any of Assad’s chemical arsenal into Russia. So under the current timeline, without hitches, Syria’s entire chemical weapons arsenal could be destroyed in as short as nine months.

Given these developments, why does the international legal issue still matter? Why not just leave the law where it is and claim this as a triumph for a bright-line rule that force is per se illegal, absent Security Council approval?

Because it ain’t over til it’s over. It is unclear whether the Security Council’s Syria Resolution provides any automatic sanctions, as originally advocated by the U.S., U.K. and France. The language of the Syria Resolution quoted above “[d]ecides …to impose measures” in case of Syrian noncompliance, but leaves ambiguous whether a second Security Council resolution would be required to implement that “decision.” Thus, future sanctions, including military force, could well require a second Security Council vote, which of course, Russia and China could again veto, even if Assad flouts his obligations to the U.N. and the OPCW. And if President Obama were again to threaten force with a stronger legal case—renewed U.K. support, one Security Council resolution now on his side, a stronger multilateral coalition, and stronger congressional support by a Congress less focused on government shutdown–would that threat also be per se illegal?

Whether or not you agree with the legal rule suggested above, it should be clear there is a big difference between calling intervention per se illegal and treating it as a very tough legal and policy call. If Obama cannot lawfully threaten force even if Assad reneges and the Russians again veto, then modern international law requires accepting the repeated, indefinite, deliberate slaughter of thousands of civilians with a per se illegal weapon of war. The claim that use of force outside the Security Council is “per se illegal” effectively concedes that the international prohibition on the use of chemical weapons cannot be enforced in this situation, because the only available enforcement mechanism is Council action, which absent U.N. reform, will always be subject to Russian, Chinese or other veto. Accepting the “per se illegal” position would make all Kosovos illegal, more Rwandas and Syrias likely, and the erosion of the categorical ban on chemical weapons inevitable.

Again, and critically, that is not to say that any of these legal or policy judgments are easy, or that Obama’s previously threatened use of force fully met the legal standard outlined above. As I said before, we cannot fully evaluate the lawfulness of any nation-state’s use of force until we evaluate the precise factual circumstances under which it actually makes that decision. But this is about the future, not the recent past, with all its good intentions and political miscues. Whether the multilateral diplomacy that has finally begun can continue and succeed will turn critically on whether a limited use or threat of force is legally available in those rare situations where the necessary conditions exist.

Some international lawyers have become more comfortable stating rules than in figuring out how international law might help to push unfolding events toward the right resolution. International law is not just about constraint and sovereignty, but about building legitimacy, channeling good U.N. policy, protecting human rights, and preventing the scourge of war. While I remain deeply cautious about intervention, I agree with Michael Ignatieff that any nominally “noninterventionist” position must acknowledge how much the world is already intervening in Syria. As a former human rights policymaker, I concede that targeted uses of force could backfire. But I still favor the option of diplomatic intervention backed by the lawful threat of limited military intervention, over the policy option of doing nothing even after a deliberate large-scale chemical weapons attack. I share Nick Kristof’s belief that such diplomatic intervention is far more likely to bring peace in Syria than a do-nothing, noninterventionist “pro-peace position” in Syria that effectively licenses continued war.

5. What Syria Means for the Law of Humanitarian Intervention: In the end, my point is simple. Whether bravado or not, “Obama’s Harfleur threat” could be defended under both domestic and international law. His threat of force drew an important moral line, which catalyzed stalled diplomacy, and even after a Security Council Resolution, remains necessary to sustain the diplomatic pressure and process. His mistake was not in drawing that line, but in failing to do the political groundwork necessary to justify it to the interested publics, and to make his legal rationales transparent to the interested public. But after much agony, a resolution to the Syrian crisis may now be beginning. To keep the process moving, the now-multilateral effort to deal with the crisis must have more legal legitimacy, to enhance both its political legitimacy and its practical effectiveness in deterring the brazen use of chemical weapons for civilian slaughter.

Syria is a lawmaking moment. It should be treated that way. International lawyers in and out of government need to discuss and define a narrow “affirmative defense” to Article 2(4) that would clarify the contours of an emerging lawful exception to a rigid rule. The Clinton Administration’s failure to articulate a clear legal rationale for its Kosovo intervention haunts us now. Continuing to threaten military action in Syria without stating a public legal rationale creates a dangerous precedent. In the future, other less-humanitarian minded states can cite Obama’s threat and put their own broad spin on the legal interpretation, to use the murky concepts of humanitarian intervention and R2P for their own self-interested purposes.

This is not the moment to re-swear fealty to an overbroad conception of sovereignty that tolerates gross atrocities. If modern international law cannot be read to permit such a limited use of force to enforce international law, international lawyers should seize on Syria as a moment to reframe international law. One need not accept my proposed rule to agree that we urgently need the debate. To paraphrase the late Lou Henkin after Kosovo, “Is it better to leave the law alone, while turning a blind eye (and a deaf ear) to violations that had compelling moral justification? Or should [Syria] move us to push the law along to bring it closer to what the law ought to be?”

Last week, I wrote, both here and in the New York Times, that after reading all 828 pages of the released SSCI report on the CIA’s Detention and Interrogation program and responses to it from the CIA and Republican committee members, I had concluded that the report’s focus on whether the techniques used by the CIA were “effective” was misguided, and essentially gave a pass to too many culpable actors beyond the CIA, especially in the White House, the Cabinet, and the Justice Department.… continue »

Before the start of business, Just Security provides a curated summary of up-to-the-minute developments at home and abroad. Here’s today’s news.

IRAQ and SYRIA

Islamic State AUMF. The White House proposal for a new authorization to fight ISIS would sunset in three years and prohibit the use of “enduring offensive ground forces,” according to congressional sources [Bloomberg View’s Josh Rogin] Roll Call’s Sarah Chacko has a transcript of Sen.… continue »